Milwaukee Branch of NAACP v. Thompson

• Citation: 935 F. Supp. 1419
• Decision Date: 01 August 1996
• Docket Number: No. 94-C-1245.,94-C-1245.
• Parties: MILWAUKEE BRANCH OF the N.A.A.C.P.; Felmers Chaney; Vincent Knox and Barbara White, Plaintiffs, Ramon Arellano Valdez and The Federation for Civic Action, Inc., Plaintiffs-Intervenors, v. Governor Tommy THOMPSON; Senate President Brian D. Rude; Senate Majority Leader Michael G. Ellis; Senate Minority Leader Robert Jauch; Assembly Speaker Walter J. Kunicki; Assembly Majority Leader David M. Travis; Assembly Minority Leader David T. Prosser, Jr.; Milwaukee County Board of Election Commissioners; Commissioner Molly Koranda; Commissioner Webster Harris, Jr.; Commissioner Tillie Bichanich; City of Milwaukee Board of Elections Commissioners; Commissioner Rosemarie McDowell; and Commissioner Jean Novshek, Defendants, Wisconsin Association of Trial Judges; Patrick T. Sheedy and Frederick A. Henderson, Defendants-Intervenors.
• Court: U.S. District Court — Eastern District of Wisconsin

935 F. Supp. 1419

MILWAUKEE BRANCH OF the N.A.A.C.P.; Felmers Chaney; Vincent Knox and Barbara White, Plaintiffs, Ramon Arellano Valdez and The Federation for Civic Action, Inc., Plaintiffs-Intervenors, v. Governor Tommy THOMPSON; Senate President Brian D. Rude; Senate Majority Leader Michael G. Ellis; Senate Minority Leader Robert Jauch; Assembly Speaker Walter J. Kunicki; Assembly Majority Leader David M. Travis; Assembly Minority Leader David T. Prosser, Jr.; Milwaukee County Board of Election Commissioners; Commissioner Molly Koranda; Commissioner Webster Harris, Jr.; Commissioner Tillie Bichanich; City of Milwaukee Board of Elections Commissioners; Commissioner Rosemarie McDowell; and Commissioner Jean Novshek, Defendants, Wisconsin Association of Trial Judges; Patrick T. Sheedy and Frederick A. Henderson, Defendants-Intervenors.

No. 94-C-1245.

United States District Court, E.D. Wisconsin.

August 1, 1996.

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COPYRIGHT MATERIAL OMITTED

Richard Saks, Perry, Lerner & Quindel, Milwaukee, WI, Dennis Courtland Hayes, Willie Abrams, NAACP-Special Contribution Fund, Baltimore, MD, Todd A. Cox, Brenda J. Wright, Lawyers Committee for Civil Rights Under Law, Washington, DC, for Plaintiffs.

James E. Doyle, Jr., Peter C. Anderson, Kathleen M. Falk, Office of Attorney General, Wisconsin Dept. of Justice, Madison, WI, for Defendants Governor Tommy Thompson, Senate President Brian D. Rude, Senate Majority Leader Michael G. Ellis, Senate Minority Leader Robert Jauch, Assembly Speaker Walter J. Kunicki, Assembly Majority Leader David M. Travis, Assembly Minority Leader David T. Prosser, Jr.

Thomas L. Shriner, Jr., Foley & Lardner, Milwaukee, WI, for Defendant-Intervenors.

DECISION and ORDER

MYRON L. GORDON, District Judge.

On November 10, 1994, the plaintiffs filed this action seeking declaratory and injunctive relief. The plaintiffs asserted claims under § 2 of the Voting Rights Act of 1965, "VRA", as amended, 42 U.S.C. § 1973, and the Fourteenth and Fifteenth Amendments to the United States Constitution regarding the statutory provisions of the state of Wisconsin and the procedures followed for the election of state judges in Milwaukee county. In their complaint, the plaintiffs alleged that the current at-large method for electing state circuit and appellate judges in Milwaukee county violates the VRA and the Fourteenth and Fifteenth Amendments with respect to black voters within the county. The plaintiffs charge that the current at-large judicial electoral technique impermissibly dilutes the voting strength of black voters in Milwaukee county.

On December 2, 1994, the plaintiffs-intervenors filed a motion to intervene, along with a proposed complaint in intervention, asserting claims on behalf of Hispanic voters which are almost identical to those made by the original plaintiffs. In their complaint, the plaintiffs-intervenors asserted that the current at-large scheme of elections for the state circuit court violates the VRA and the Fourteenth and Fifteenth Amendments with respect to Hispanic voters within Milwaukee county. However, the plaintiffs-intervenors do not challenge the system for electing judges to the state court of appeals in Milwaukee county.

On January 27, 1995, Judge John W. Reynolds granted the plaintiffs-intervenors' motion to intervene in this action, and, on April 26, 1995, he granted the defendants-intervenors' motion to intervene. An order was entered by Judge Reynolds on April 6, 1995, which bifurcated the trial into a liability stage and a remedy stage.

By decision and order of June 10, 1996, I granted the motion made by the defendants and defendants-intervenors for partial summary judgment as to the constitutional claims advanced by the plaintiffs and plaintiffs-intervenors. In the same ruling, I denied the motion made by both sets of defendants for partial summary judgment as to the plaintiffs-intervenors' claim under § 2 of the VRA.

A trial to the court was conducted on the issue of liability under § 2 of the VRA from July 8, 1996, through July 16, 1996. Pursuant to the stipulation of the parties, which was approved by the court on July 8, 1996, the claims of the plaintiffs-intervenors were not at issue in this trial. This opinion constitutes the court's findings of fact and conclusions of law pursuant to Rule 52, Federal Rules of Civil Procedure.

The parties filed a comprehensive stipulation on July 8, 1996, setting forth 70 factual findings which the court may recognize under Rule 52, Federal Rules of Civil Procedure. In addition, on July 16, 1996, the parties filed an addendum to the stipulation which identifies one more factual finding. The stipulation and addendum to the stipulation are attached to this decision and order as appendix A. Factual findings made by the court which are not specifically identified in the stipulation or addendum to the stipulation are set forth in the body of this decision and order.

I. SECTION 2 OF THE VOTING RIGHTS ACT

Section 2 of the VRA, as amended, prohibits states from imposing or applying any "standard, practice, or procedure ... which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color." 42 U.S.C. § 1973(a). A violation of this provision is established where

based on the totality of the circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the electoral process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.

42 U.S.C. § 1973(b) (emphasis in original).

At-large elections are not a per se violation of the VRA. Thornburg v. Gingles, 478 U.S. 30, 48, 106 S.Ct. 2752, 2765, 92 L.Ed.2d 25 (1986). Minority voters asserting a claim under the VRA must prove that the electoral structure "operates to minimize or cancel out their ability to elect their preferred candidates." Id.

To prevail on a challenge to an at-large system on behalf of a protected class of citizens, plaintiffs must meet the threshold requirements that the United States Supreme Court first identified in Gingles. Specifically, plaintiffs in vote dilution cases such as the one at hand must demonstrate that: (1) the group is sufficiently large and geographically compact to constitute a majority in a single-member district; (2) it is politically cohesive; and (3) the white majority votes sufficiently as a bloc to enable it usually to defeat the minority's preferred candidate. Id. at 50-51, 106 S.Ct. at 2765-67.

Proof of these three Gingles prerequisites creates an inference that members of the minority are harmed by the challenged electoral structure. Uno v. Holyoke, 72 F.3d 973, 980 (1st Cir.1995). However, "that inference is rebuttable." Id.; Westwego Citizens for Better Government v. City of Westwego, 946 F.2d 1109, 1116 (5th Cir.1991). The plaintiffs must show that, "under the totality of the circumstances," they do not possess the same opportunities to participate in the political process and to elect representatives of their choice enjoyed by other voters. League of United Latin Amer. Citizens v. Clements, 999 F.2d 831, 849 (5th Cir.1993) cert. denied, 510 U.S. 1071, 114 S.Ct. 878, 127 L.Ed.2d 74 (1994) "LULAC". In making this inquiry, courts are directed to analyze the factors first enunciated in Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir.1973), aff'd sub nom East Carroll Parish School Bd. v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976), and later identified in the Senate Report accompanying the 1982 amendments to § 2 of the VRA. The nonexclusive list of factors to be addressed in a totality of the circumstances assessment include:

1. the extent of any history of official discrimination in the state or political subdivision that touched upon the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process; 2. the extent to which voting in the elections of the state or political subdivision is racially polarized; 3. the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single-shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group; 4. if there is a candidate slating process, whether the members of the minority group have been denied access to that process; 5. the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education and health, which hinder their ability to participate effectively in the political process; 6. whether political campaigns have been characterized by overt or subtle racial appeals; 7. the extent to which members of the minority group have been elected to public office in the jurisdiction. Additional factors that in some cases have had probative value as part of plaintiffs' evidence to establish a violation are: whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group and whether the policy underlying the state or political subdivision's use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous.

S.Rep. 417 at 28-29, reprinted in 1982 U.S.Code Cong. & Admin.News at 206-07.

The Supreme Court has held that § 2 of the...